One Man’s Opinion: The Exchange – A Halachic Overview

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gilad-shalit1By Rabbi Yair Hoffman

The recent exchange of Gilad Schalit for over 1000 Palestinian prisoners, many with blood on their hands, has sparked much debate in the Jewish community. Is this exchange wise? Is it permitted according to Halacha? Are we not endangering the lives of so many others in this move?

Many of the Rabbis who have discussed the issue thus far have come out that the exchange is a violation of halacha. Among them were Rabbi Dov Lior of Kiryat Arba and Rabbi Shmuel Eliyahu, the son of Rabbi Mordechai Eliyahu zt”l the former Sefardic Chief Rabbi of Israel (see http://yourjewishnews.com/12143.aspx). It seems that at least initially, Rabbi Amar the current Sefardic Chief Rabbi of Israel, was also in agreement with them.

Respectfully, however, this may not necessarily be the last word on the subject.

Let us not forget that often, halacha is not so clear cut. Every case in halacha must be examined upon its own merits and the specifics of each case. We must do the same here.

Before we get into the halachic discussion, however, let’s perhaps look at the question in a somewhat different light.

Gilad Schalit is a member of Klal Yisroel, and we must look at each member of Klal Yisroel as we would our own children. If, heaven forbid, one of our own children was kidnapped and threatened with death, would we release a thousand people who were threatening to kill some, most or all of our other children?

This is the way we must look at this recent exchange. But at the same time, we must take steps to ensure the future safety of our other children too.

So now let’s look at the halachic sources and also delve a bit into the underlying issues with the prisoner exchange.

The Mishna in Gittin 45b tells us that we do not redeem captives for more than their value. The meaning of course is to their value on the market as slaves. The Mishna tells us that it is “mipnei tikkun olam” – which means as public policy.

The general implication of this term is that it is a public policy enactment. In other words, in order to stop a situation where criminals kidnap Jews for a ransom a special enactment was made that prohibited paying substantially more for Jewish captives. Had this enactment not been promulgated, Jewish life would have been endangered. The enactment served to remove the incentive to kidnap Jews specifically. Jews will be halachically constrained from having to pay a premium to redeem other Jews.

The enactment, of course, would not prevent kidnappings. It would merely prevent a situation where Jews would be specifically targeted.

But the essential point is that there was a specific time and circumstance when this enactment was promulgated. Prior to the enactment, from a historical perspective, it would seem that halacha would have dictated that the ransom be paid. The Rabbis took it upon themselves to create legislation forbidding it in order to better benefit the public. It was an enactment that created a new rubric – without negative consequence.

It can and perhaps should be argued that our current situation involves no exchange of money – rather it involves the creation of a possible danger – but the enactment referred to in Gittin 45b is not relevant to our case, as it did not encompass the freeing of prisoners, or the release of a greater danger.

Should another enactment be made like that of Gittin 45b? Absolutely – as it would save lives. Do we have the ability to do so? Halachically, we can possibly utilize the institution of Cherem – communal ban, and mimic the capability of promulgating halachic enactment that the sages once had. Have we done so yet? No. Until we do so, we should go ahead with the exchange unless there is another mitigating factor, which we shall explore further.

Should the Knesset pass legislation limiting the government’s ability to facilitate such exchanges? Yes, absolutely. Have they done so? Not yet.

Another interesting issue is that there are a number of Rishonim and Achronim who rule that the entire enactment is only when there is no danger to life. These opinions are cited in Pishchei Teshuvah YD (252:4). He states that if there is a danger to life the enactment does not apply. Among those who rule thus are the Meiri. Even though the majority of Achronim disagree with this point, this is a significant point of halachic debate.

With the Mishna in Gittin no longer being an issue, the issue comes down to a definite saving of life now versus possibly saving many more lives in the future. Although one can perhaps argue that it is not a “possible” but a “definite”, as experience has shown – even still the exchange may be halachically necessary. Why? We are not sure which one’s they may be and it has not been directly established who it will be – the saving of life now may outweigh the future saving of even more life. This exact rationale is presented by Rav Vosner in Shaivet HaLevi Vol. V #137.

There are two additional issues that are pertinent as well. The first issue is that the terrorists are, and have always been motivated to kidnap. One could perhaps argue that they are “maxed out” in this regard. While they could allocate more resources toward kidnapping soldiers – it is likely that such a re-allocation may be more noticeable by Israel’s intelligence, and the entire kidnapping edifice could come down on them.

The second issue is that as far as the release of the terrorists themselves bringing about more devastation and death, the fact that the fences are more developed than they were in the past is a significant issue. It would also seem that the amount of available “manpower” is not the overriding factor in determining how much terror comes out of the territories. This may endow these past terrorists into what can be called a “Safaik Rodef.” Rav Chaim Ozer Grodzinsky (Achiezer Vol. III 72:3) address the issue of a safaik rodaif and concludes that one does not kill certain life because of the possibility of a safaik rodaif. Although the situation is not completely analogous, the difference between a certain rodaif and a possible rodaif is clearly made. Rav Feinstein zatzal also shares a similar view (see Igros Moshe CM II 69:4).

Finally, one can even argue that the guilt factor on Prime Minister Netanyahu’s part may empower him to do more in regarding to punishing terrorist acts. It is likely that future terrorist acts may be dealt with on an even more immediate and harsher basis than they have been dealt with in the past. This could possibly lead to even a reduction in loss of life.

The conclusion? It is certainly not an easy decision, but there does not seem to this author to be a clear cut prohibition to avoid the specific fulfillment in the case of Gilad Sshalit of “Lo Saamod al Dam Rayacha – do not stand idly by your brother’s blood..”
May G-d Al-mighty safeguard all of us and all those who seek and love peace.

The author can be reached at yairhoffman2@gmail.com

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16 COMMENTS

  1. Respectfully disagree.

    The Halachah is very clear: Although Pidyon Shvuyim is one of the foremost obligatory Mitvos, all the major Poskim rule that if the captors demand an excessive sum of MONEY, it should NOT be done, as this would encourage them to take more captives, endangering lives.

    Accordingly, I would be very surprised and disappointed to find any major Posek endorse this “deal”, releasing over 1000 terrorists, many of whom committed multiple murders of our brethren.

  2. This is a very original way of looking at the question – if the prohibition of Lo Saamode can be can pushed off or not by a possible enactment.

    My question is, however, what is the heter to be a mazik, in order to avoid an issur. If we assume that the terrorists do present a danger to everyone, how can we damage the community in order to avoid a technical prohibition, assuming that this transaction isn’t really worthwhile for the community as a whole.

  3. How much of a safek is a safek? It is certain that the released murderers will try (and, in fact, have said so explicity). It is also certain thatt here will be more attempted kidnappings as a result of the deal.

  4. Israel desperately needs for there to be an international unbiased court similar to Nuremberg to try criminals against humanity they would then be able to turn over terrorists for capital trial’s

  5. The whole Gaza is one big terrosist organstaion. They are terororist even without the 1000 plus prisioners. So, not freeing and yes freeing these terrorist does not really make a difference to all the rest of them livinig in Gaza, they want the whole of Israel.
    True they got a good deal, but this exhcange does not really put a new price tag on prisonores. The price tag is already their. They have been and they will always be terorists – with or without freeing these 1000 orisionores. They only differece is, that these are one that have been caught, where as the other tens of thosandns of not.
    So in my humble opinion, a true mitzvah of pidayon Shevuim has been acheived.

  6. The whole Gaza is one big terrosist organstaion. They are terororist even without the 1000 plus prisioners. So, not freeing and yes freeing these terrorist does not really make a difference to all the rest of them livinig in Gaza, they want the whole of Israel.
    True they got a good deal, but this exhcange does not really put a new price tag on prisonores. The price tag is already their. They have been and they will always be terorists – with or without freeing these 1000 orisionores. They only differece is, that these are one that have been caught, where as the other tens of thosandns of not.
    So in my humble opinion, a true mitzvah of pidayon Shevuim has been acheived.

  7. I think something is very wrong with that whole enactment thing of Tikun Olam. The Mishna is merely giving a reason why it should not be done. It does not say Takana, it says Tikun. The point of Sakanas Mavess is interesting. However, as long as there are negotiations there is no such threat. Also, they got themselves into this mess by giving in more and more.

  8. For whatever reason G-d decided that this was the time for Gilad to be back and for a further 1000 terorrist to be released. Let us continue to pray that the fallout will be only positive and H-shem will protect us from future dangers

  9. You’re ignoring reality!

    The Israeli intelligence said some time ago that the deal which freed Tanenbaum and three bodies (??!!)of Israelis some 8 years ago had costed an estimated 30 lives in subsequent terror attacks against Israelis! This was not an isolated occurance – there is much more shocking data regarding other prisoner swaps – conducted by Israeli polititians in the past, as well.

    The Torah does not make impossible demands upon us, and one who is sincerely devoted to it will be able, when necessary, to subjugate his emotions to uphold it. One who is not – will only cause himself and others more harm, rachmana litzlan. The Shalit case itself had caused such a tumult at the time – to the point that the Hizbullah decided to act likewise, abducting and killing 3 additional Israeli soldiers along the Lebanese border HY”D, and thus sparking a new war in Lebanon. In addition, there were SEVERAL attempts since then to capture more Israeli soldiers, which were prevented – not by careful alert, but rather by Chasdei Shamayim.

    It is known the the father of Rav Moshe Feinstein ztz”l was once captured by the Cossacks, who demanded a tremendous sum of money for his release. He somehow was able to alert his kehilla that they were forbidden to give in to such demands – no matter what they had threatened. Miraculously, the Cossacks had freed him unharmed, nonetheless.

  10. One of the things that I like about the author’s articles is that he often presents the issue with the primary halachic sources in a clear, organized fashion. That way, even one who is not a poseik can understand the issues at hand. One gets an insight into the clear cut halachic factors that the poskim or gedolim may be weighing.

    In this article, however, I was sorely disappointed. The author, with all due respect, presented a set of loose connections between unrelated halachos. Overall, the author is presenting sugyos that at best might be connected by a serious posek (in no way disregarding the Talmid Chacham that the author is)with very broad shoulders. Indeed, someone like R’ Wosner, R’ Elyashiv, R’ David Feinstein, etc.

    In addition, it is surprising that the author didn’t bring the case of the Maharam of Rotenburg, where it seemed to be clear that his students’ only rational for being willing to pay more for him was the fact that he was a gadol hador. Even so, the Maharam didn’t allow them to redeem him. While one may argue that the Maharam’s life wasn’t in danger (he lived peacefully in prison for many years afterwards), that doesn’t necessarily change the scenario.

    Also, the author’s argument that we have to look at him as one of our children also is irrelevant. If the halacha was that one may not redeem him, one wouldn’t be able to do it even for a kid.

    All in all, I don’t think this shed much light on the issue.

  11. ein safek motzi midei vadai. its a vadai that he was in captivity (which would have certainly cost him his life if not freed), and its a safek if these released terrorists are going to do anything, regardless of what they say. plus 1000 is a drop in the bucket compared to the many thousands of terrorists in gaza and the west bank. (i agree with #10)

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